Citation NR: 9618942
Decision Date: 07/11/96 Archive Date: 07/22/96
DOCKET NO. 94-28 248 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to an increased rating for a right femoral
neuropathy, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Scott R. Damelin, Associate Counsel
INTRODUCTION
The veteran had active service from October 1946 to March
1948. In October 1991 the Board of Veterans Appeals (Board)
granted entitlement to compensation benefits pursuant to the
provisions of 38 U.S.C. ß 1151 (formerly ß351) for right
femoral neuropathy. This appeal arises from a November 1991
rating action of the Hartford, Connecticut Regional Office
(RO) which granted a 20 percent rating for that disorder. By
rating action of January 1993, the RO implemented a hearing
officerís decision of December 1992 and increased the
veteranís evaluation for a right femoral neuropathy from 20
to 30 percent; the veteran appeals this rating as inadequate.
REMAND
The veteran contends, in effect, that his right femoral
neuropathy is more disabling than currently evaluated. The
representative at the Board of Veteransí Appeals (Board)
stated that unless an increased rating is granted, the case
should be remanded to the RO for further development,
including a current Department of Veterans Affairs (VA)
medical examination.
A review of the record discloses that on VA neurological
examination of November 1992, the examiner noted muscle
atrophy of the right quadriceps as 1+, and muscle strength of
the right quadriceps as 3/5. The examiner noted numbness of
the right anteromedial thigh and leg. The veteranís knee
jerk was 0/2-3+, and ankle jerk was 1-2+/1-2+. The diagnosis
was femoral neuropathy associated with a 1989 angioplasty,
and the examiner stated that the veteran had a moderate
disability which limited his ability to walk and climb
stairs.
In a statement of November 1992, Irving Friedman, M.D., noted
that he had seen the veteran twice a year, since April 1989.
Current diagnoses included right femoral neuropathy,
including permanent right quadriceps atrophy and permanent
absent right knee jerk; peripheral neuropathy; chronic right
saphenous neuropathy; and permanent gait disorder due to
marked proximal right leg weakness. The doctor stated that
it is beyond a reasonable degree of medical certainty, that
the veteranís disability is certainly beyond 20 percent. He
indicated that the gait disorder was severe, and that the
veteran could not ambulate without the use of a cane. He
further noted that the veteran was especially unsteady
getting on and off curbs, and that for the veteran, climbing
a flight of stairs is a major time consuming hurdle. Dr.
Friedman further described the veteranís disorder as painful
and debilitating.
More recent clinical records currently in the claims folder
do not address the status of the veterans service connected
right femoral neuropathy.
The veteranís right femoral neuropathy is currently evaluated
as 30 percent disabling. Under the applicable rating
criteria for a right femoral neuropathy, a 30 percent rating
requires severe, incomplete paralysis of the femoral nerve.
A 40 percent rating requires complete paralysis of the
femoral nerve manifest by paralysis of the quadriceps
extensor muscles. 38 C.F.R. Part 4, Diagnostic Code 8526
(1995).
Appellate review discloses that neither the VA examiner nor
the private neurologist specifically states whether or not
the veteranís right femoral neuropathy is manifested by
paralysis of the quadriceps extensor muscles.
The VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. ß 5107(a) (West
1991); 38 C.F.R. ß 3.103(a) (1995). The U.S. Court of
Veterans Appeals (Court) has held that the duty to assist the
veteran in obtaining and developing available facts and
evidence to support his claim includes obtaining medical
records to which the veteran has referred and obtaining
adequate VA examinations; the Court has also stated that the
Board must make a determination as to the adequacy of the
record. Littke v. Derwinski, 1 Vet.App. 90 (1990).
Fulfillment of the statutory duty to assist includes the
conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully-informed one. Green v.
Derwinski, 1 Vet.App. 121 (1991).
Under the circumstances, the Board finds that the veteran
must be afforded a new VA examination. Accordingly, this
case is REMANDED to the RO for the following actions:
1. The RO should contact the veteran and
request him to specify the names and
addresses of, and dates of treatment by,
all providers of medical treatment for a
right femoral neuropathy since November
1992. Where appropriate, forms giving
his consent for the release to the VA of
all records of non-VA medical treatment
should be signed and submitted by the
veteran. Thereafter, the RO should
contact the specified providers of
medical treatment, including Irving
Friedman, M.D., 2270 Kimball Street,
Suite 209, Brooklyn, New York 11234, and
request them to furnish copies of all
records of treatment of the veteran for a
right femoral neuropathy from November
1992 to the present time. All records
obtained must be associated with the
claims folder.
2. Following completion of the above
mentioned development, the veteran should
be afforded a special VA neurological
examination to determine the current
degree of severity of his right femoral
neuropathy. Such tests as the examining
physician deems necessary should be
performed. All clinical findings should
be reported in detail. The examiner
should specifically comment on whether
the veteranís right femoral neuropathy is
complete and whether it is manifested by
paralysis of the quadriceps extensor
muscles. The claims folder must be made
available to the examining physician
prior to the exam so that he may review
pertinent aspects of the veteranís
medical history.
3. Following the completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
aforementioned development action has
been conducted and completed in full. If
any development is incomplete, including
if the requested examination does not
include the specific opinion requested,
appropriate corrective action is to be
implemented.
Following the completion of these actions, the RO should
review the evidence and determine whether the veteranís claim
for an increased rating for a right femoral neuropathy may
now be granted. If the veteranís claim has not been granted,
he and his representative should be furnished an appropriate
Supplemental Statement of the Case and afforded an
appropriate period to respond. Thereafter, subject to
current appellate procedures, the case should be returned to
the Board for further appellate consideration.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1995).
- 2 -